POTHEN CHANDY Vs. OUSEPH KOCHAOUSEPH

JUDGEMENT

(1.) This is an application by the 1st defendant in O.S. 58/1119 in the court of Temporary Second Judge, Kottayam, for transfer of the case to some other Bench. The ground relied upon for the transfer is that the Judge who examined the petitioner as D.W. 1 in the case wrote a remark after the petitioner signed the deposition. That remark runs thus: "This witness struck me as unscrupulous".

(2.) The petitioner states that he apprehends that the learned Judge having made this remark in the deposition (which he had no right to do) he may not get justice at the hands of that Judge.

(3.) O.18, R.11 of the Code of Civil Procedure, 1100 (Travancore) corresponding to O.18, R.12 of the Indian Code of Civil Procedure, authorises Judges examining witnesses to record such remarks as they think material "respecting the demeanour of any witness while under examination". The question as to when and where these remarks have to be made and as to what matters the remarks should relate were discussed at the Bar, but no real light was thrown on the question and the Court is left to decide the matter solely by reference to the language of the said provision. The last portion "while under examination" is the only clause in the rule relating to the time for making a remark on the demeanour of the witnesses. It is therefore, clear that, in the absence of any other indication, the time for making the remark must be when the witness is under examination. The Judge would, therefore, appear to be not in order in having made the remark in the deposition after the examination was completed and after the deposition was read over to the witness and he signed the same. Except signing the deposition as one recorded by him, the Judge examining a witness cannot do anything more with a deposition. Assuming he is free to make the remark at some time even after the examination is completed and the deposition is signed by him he may make it in the proceedings paper or in the judgment for what it is worth.